Mike Nifong’s arrogance is breathtaking. Today’s Times features another article based in part on the three-hour interview the D.A. granted with Times reporters on Thursday. It’s worth reiterating that, prior to Thursday, Nifong had, on multiple occasions, termed it procedurally improper for him to publicly discuss the case in any way.
According to the Times, Nifong has developed an excuse for why he entered into an agreement with lab director Brian Meehan to intentionally exclude from Meehan’s report results showing that the DNA of several unidentified males was discovered in the accuser’s rape kit. His claim? It was an innocent mistake—he had other work that distracted him from his duty to follow the Open Discovery law.
“You know,” he told the Times, “it’s not the only case I have right now. I have two. The other one’s a quadruple homicide. If you ask me, to everybody but a reporter for an out-of-town newspaper, the quadruple homicide is probably the more significant case. But because we have some of these other sexy issues here, you all are flipping out over this particular case, which is not the most significant case in our office. It doesn’t mean it doesn’t get attention. What I’m saying is in the overall pecking order of things, it’s not the most important thing that we’re doing.”
1.) The Significance
His deal with Dr. Meehan, claims Nifong, isn’t all that important.
Times reporters David Barstow (a new figure on the Duke case as of the last two articles) and Duff Wilson explain:
[Nifong] denied, though, any effort to hide the results or delay their release. He has long been known locally for giving defense lawyers open access to his evidence, even before a state law required that. And, he said, even if the test results should have been turned over months earlier, the defense still had the evidence well in advance of any trial date — which had not yet been set.
“So it’s not like this is something we discover on the fourth day of a five-day trial and say, ‘Oh, by the way,’ ” he said. “I mean, that’s not what’s going on.”
UNC law professor Joseph Kennedy has, correctly, ridiculed this argument. “Prosecutors,” he wrote, “do not get to play ‘Battleship’ with their discovery obligations by requiring defense lawyers to score a direct hit with a discovery request. Prosecutors must affirmatively disclose what the law requires.”
And the law, in this case, is clear: since 2004 in
That Nifong effectively brushed off his obligation to follow the law testifies to the mindset he has brought to this case.
2.) The Election
Although the Times continues to obscure its presence, an election did occur for district attorney on November 7, 2006. The quadruple homicide was not the “more significant case” in that contest. In fact, the quadruple homicide played almost no role in the race. Effectively the only issue in that campaign was the district attorney’s handling of the lacrosse case, and what it said about his fitness to serve as prosecutor.
Nifong’s revisionist history, however, goes something like this: he was facing a recall election in which his political opposition—along with the N&O news staff—hammered him for lacrosse case procedural violations. But he was too busy (doing what is unclear) to notice that he had committed a major procedural violation by not turning over the exculpatory DNA results in the very case for which he was under daily criticism.
Even Nifong’s own words contradict this transparently absurd version of events. On November 5, the district attorney was perfectly clear on the significance of the lacrosse case to his constituency. In an e-mail sent to his supporters and leaked to me, he stated that the Recall Nifong/Vote Cheek forces “have endeavored to make this election something it is not: a referendum on a single case that that [sic] view as a threat to their sense of entitlement and that they do not trust a jury of Durham citizens to decide.” In the days before the election, then, Nifong fully understood which of the two cases was more significant to the November vote.
In light of his November 5 e-mail (as well as common sense), Nifong’s statement to the Times about the comparative significance of the two cases in
3.) The Excuse
As to the insinuation that his duties prosecuting the quadruple homicide played any role his failure to turn over the lacrosse case DNA: the assertion only shows Nifong’s contempt for the Times, a newspaper that has played the fool for him for far too long.
Police arrested Rodrick Duncan for a quadruple homicide on October 16, at which point Nifong’s office took over the case.
- On April 10, Nifong entered into an agreement with Dr. Meehan for an “intentional limitation” of Meehan’s report to exclude the exculpatory evidence. April 10 is prior to October 16.
- On May 18, Nifong turned over Dr. Meehan’s selectively edited report to defense attorneys. He accompanied the document and other discovery material with the following statement. “The state is not aware of any additional material or information which may be exculpatory in nature with respect to the defendant.” May 18 is prior to October 16.
- On June 22, as the Times story observes, “Mr. Nifong denied that Mr. Meehan and he had talked about anything else he had to disclose to the defense.” June 22 is prior to October 16.
- On September 22, Nifong ridiculed the defense’s request for the underlying DNA data, accusing defense attorneys of conducting a “witch hunt” and sarcastically finding it “interesting now that they are trying to get information that would help dispute those tests.” He also released a letter from Dr. Meehan expressing concerns (which Judge Smith overrode) about privacy and cost regarding turning over the data. September 22 is prior to October 16.
In short: on no fewer than four occasions before police made arrests in the quadruple homicide, Nifong took an affirmative act to deny defense access to DNA material that he himself now concedes was exculpatory.
There have been two consistent patterns in this case. First, Nifong will manipulate any and all evidence to his fit his desire to charge the lacrosse players with a crime. Second, every time Nifong speaks publicly on the case, he unintentionally winds up providing fodder for future ethics charges.
The Nifong interview with the Times conforms to both patterns.